The woeful state of our debate Part 8: Men vs women

As someone who spends a great deal of time complaining (legitimately) at the simply woeful state of our national debate about the family justice system in general and proceedings involving children in particular, I accept that it is incumbent on me to put my money where my mouth is particularly when I appear to have caused annoyance with some sound bite response.

@SVPhillimore Simplistic thinking, particularly for a family law barrister I would suggest.

I invited Jeff Botterill to write a guest post for this site to which I could respond at greater and more nuanced length, but it does not seem that Jeff wishes to take up that opportunity, so I will hopefully start the ball rolling with this.

Jeff asked me to consider some articles, via a series of tweets.

One was from the Telegraph in 2009 which stated that children in a third of family break ups lose contact with their fathers due to ‘failing court system’. Another from the Telegraph in 2008 which stated that ‘fathers were powerless against vengeful mothers’. And finally an article from the Guardian in 2004 which stated that Munby J (as he then was) launched an ‘extra-ordinary attack’ on the family court system for ‘failing fathers’.

So what is my response to this?

First: these articles range from 2004-2009. Already that puts the debate on the back foot. A lot has happened in the family justice system since 2009 (some of it good, some much less good). I am not really interested in arguing about what things were like 7 or even 12 years ago – I would like to focus on the situation as it is now.

I would like to know what Jeff’s response is to the rather more recent research in 2015 that found that courts did not discriminate against fathers. However, I clearly can’t ignore the fact that these articles struck a chord with Jeff, and presumably would continue to strike a chord today with many others who represent fathers or fathers’ rights groups. So lets look at what they say.

The Telegraph article from 2009 states:

A quarter of the children said that they had been asked to lie to one parent by the other and 15 per cent said they had even been called on to “spy” for their mother or father.
Meanwhile half of parents polled admitted deliberately drawing out the legal process for maximum benefit and more than two thirds conceded that they had used their children as “bargaining tools”.

This article gains a little more ‘oomph’ than I would normally expect from something in the Telegraph because it quotes an actual lawyer who says:

“The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns,” said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.
“It polarises parents and it puts children in the middle of the antagonism.
“Some fathers back off because it is too painful to carry on litigating, they give up.”

But this is the problem. I simply don’t accept that it is the court system that makes bitter, angry people bitter and angry. I don’t accept that it is the court system that makes parents use their children as pawns in their horrible battles against one another. I don’t accept it because it is emphatically not what I have witnessed over 17 years.

Of course – the court system will certainly NOT help make people less angry or less bitter. Court is absolutely the last place angry bitter people need to be. But it isn’t the court causing this problem. It is simply that the court can’t really do anything about it. That isn’t a question of ‘fault’ – its a recognition of reality.

My very clear view, based on now nearly 17 years working in the family courts in both private and public law proceedings is that the law is a very blunt instrument for dealing with the misery and pain that comes from the toxic unravelling of a relationship; particularly when there are children involved – the ultimate hostages to fortune. It isn’t possible to simply imprison hostile mothers who are the primary carers of young children. What is the likely impact of that on the child? Fines have limited impact if someone has no money. The court has very few weapons in its arsenal to make the unreasonable, reasonable.

I have considered the law about intractable contact disputes in another post. It is clear that the senior courts agree with me – being a parent is a responsibility. Bringing another life into this world is a very serious thing and one that should not be considered lightly or frivolously. Because when it goes wrong, the shock and emotional fall out is considerable for everyone involved.

What the more extreme fathers’ rights groups such as Fathers 4 Justice seem to want us to accept is that all their members were just so terribly unlucky – to trip over and find themselves accidentally impregnating some awful woman who went on to make their lives a misery and thwart their relationship with their children. Presumably the reality is more likely to be that at some point, these men and these women met, formed a relationship, had consensual sex and decided to bring a child into the world. If they made this decision without really taking the time to get to know each other and to make sure that they at least liked and respected each other enough to co-parent well, then I am afraid it is their fault when things go wrong down the line and they find they lack the tools to communicate with or understand one another.

Maybe that sounds a bit harsh. Maybe love – or lust – is blind. But the one thing they cannot blame for their inability to communicate reasonably or respectfully, is the court system.

I am quite clear that behaving badly in court is not the sole province of either the male or the female. Both can and do behave very badly and their children suffer for it. For every article decrying the system failing fathers, there will be reports from other pressure groups saying it fails mothers by being far too soft on violent men. See for example the 19 Child Homicides Report from Women’s Aid.

So much of this debate is woeful because it is turned into a ‘them’ versus ‘us’ debate; the Evil Feminazis against the Violent Abusive Absent Fathers. Lucy Reed discusses this clearly in her blog post – Talking AT and OVER not TO and WITH – and I endorse all that she says.

What both ends of the polarised extreme can agree on however is that the court is to blame whenever something goes wrong. And I reject that, and will continue to reject it as a clear example of attempt to deflect responsibility to some external agency.

There is real debate here about what we need to do to stop the problem arising in the first place – better sex/relationship education at school? – and to provide better mechanisms for dispute resolution – more access to counselling/therapy?

But we won’t be having that debate when all happens is two opposing camps shouting at each other across an abyss. I accept that my experience is just that – my experience. Others may have different experiences. But equally, it is not reasonable to expect me simply to abandon my experiences on the back of some news paper articles now many years old.

But if I am wrong, if I have missed some fundamental point, I hope Jeff will reconsider and provide a response to this. What we need to do is think about how to make a bad situation better and encourage dialogue between all those on whom the family justice system has an impact – which is pretty much everyone.

EDIT 30th May

My fault for not being sufficiently clear. I am of course talking about disputes between parents where there have been no findings made against either of them. I am emphatically NOT talking about cases where there is clear, proven reasons for one parent to be very wary of the other – for example because of violence or false allegations made by one against the other.

I don’t think the courts are as bad as some claim at recognising the seriousness of domestic violence but I understand and appreciate that many disagree with me. For what it’s worth, my comment on the problem is that this prevailing culture of telling victims ‘we believe you’ is all well and good but it leads to some nasty shocks when actually in a court room setting where a Judge is not saying ‘I believe you’ but rather ‘show me the evidence’. And I accept it is often very difficult to ‘prove’ in a family court historical allegations for which there is no supporting evidence, such as police or doctors’ reports. People in relationships with violent and abusive people need help and support to get out as quickly as possible and to make sure their concerns about the other’s behaviour are reported to other agencies and well documented.

There are a lot of straw man arguments in your blog and your view of this being men vs women is completely irrelevant to what I tweeted unfortunately, completely the opposite to the point I was making.

For clarification I think mothers and fathers are both treated poorly at times within the family court system and at times they are both dealt with fairly and considerately.

You don’t seem to have understood my point Sarah which was as I tweeted:
“Easy to blame the parents. However, family court system far from perfect as many of those who work within system have noted.”

I then posted a couple of links to LJs and a head of family law at a law firm that confirmed that the system is far from perfect.

My view is that the family courts are indeed far from perfect despite the many excellent people who work within. Far more to do, to improve the family courts for those who end up using them of course.

Just a quick reply – I will respond more fully later. The three articles you tweeted were all about the system failing FATHERS. which explains why I replied the way I did. If you were attempting to show how the system fails parents, you needed to find some better examples. I appreciate the 2009 article appeared to be talking about ‘parents’ but in my view came down squarely to blame system for failing fathers.

I have had a look at Jeff’s blog post and it does seem to focus on his displeasure at my tweets – when the whole point of this exercise was to prompt some reasonable debate that didn’t depend on sound bites in 140 characters. I completely accept that isn’t the way forward.

I can’t see that Jeff actually engages with the points I raise in this blog post. He says I am ‘naive’ and ‘simplistic’ and that the family court system needs to change – but I can’t see any actual suggestions for what changes he wants and how they would be implemented.

My crucial, fundamental point – with which I note he does not engage – is that the only weapons the family court really have to compel compliance are the nuclear options of imprisonment or change of residence. Just how are these to be used on for e.g. mothers who have the primary care of young children? Children are emphatically NOT pawns in this battle. And this is the very heart of the problem. Often, ‘punishing’ the parent means punishing the children.

so I am sad and sorry to say that it looks as if our attempts to have a dialogue have bit the dust.

Nor am I entirely sure why Jeff feels the need to garland his blog post with a massive picture of me, but I suppose all publicity is in the end, good publicity.

Sarah, this is why i never read ‘blogs’ or go on websites by internet ‘bloggers’ whichever side they come from.
Bloggers are often means ‘blaggards’. Obviously ,i cannot generalise and will not include Jeff without reading his blog.

It seems to me that the Family Court protocol is largely concerned with private law cases .Judges have to be granted wide discretion on their interpretation of evidence presented by ‘tug-of-love’ couples. The different evidence is going to be very adversarial and the Judge has to have the discretion to decide between the two parents who are at one another’s throats.
Therefore, it is most important that the Judge pays great attention to actual facts. These may be hard to establish because both parents are likely to either invent narratives or embellish the facts. I hope solicitors don’t encourage them to do so on the count of past precedent.
I suggest that the findings of fact made by any divorce court involved will have to play a big part. Like the sharing of property depends on where fault lies so should any decision regarding children in a tug-of-love. Maybe orders should not be made until a divorce decree has gone through.
I also suggest that unless a child is thirteen or over and able to express a preference,the general guiding rule should be that he/she remains with mother and that father should pay maintenance.

Hope this helps. To fathers,i would add that if the break-up is down to the faults of the Mum , then it will be reflected in the divorce decree and the Judge can make decisions to fit.

Please note that Public Law cases should not really be adversarial and should be heard on facts alone. A judge should not be granted such a wide discretion as in Private Law.

If the parents are not married ,there cannot be a divorce decree.
So what can be done about that?
Both parents should by law be on the birth certificate so both will share P.R.
Is equal PR possible without marriage vows? Possibly the Law should be changed to deal with any anomaly. In the case of unmarried couples ,perhaps Dads do not deserve equality in the parent/child relationship. Rather it should be 75/25.
Get married and it will be 50/50.

No. I profoundly disagree that the law could or should be used as a tool to modify people’s behaviour in this way. I just don’t think it will work. We need to go back and start unpicking at a much earlier stage – the massive harm done to relationships between men and women by the relentless pornification of our relationship culture. That some people behave appallingly badly and other people are so lacking self esteem they let them.

The fundamental emphasis needs to be – not on tinkering with the law and ‘percentages’ of PR (how on earth would that ever work??!?) but by driving home the urgent message – creating another human life is a MASSIVE responsibility. Please don’t share your DNA with someone you are not confident you can co-parent with. Having children then falling out with the other parent is something you and your child will have round your necks probably for the rest of your lives.

I know you can’t mediate in all cases but, as you say, the courtroom is a very clumsy way of dealing with such disputes. A Judge can rule, a bit like an authoritarian parent, and sometimes that is what is needed but the whole win/lose thing isn’t conducive to future co-parenting. I’ve know cases where there has been an abusive dynamic and also where both parties seem to gain a perverse pleasure from the battle which gets entrenched in their psyche via a court room.

Private law cases which come to CP indicate the extent of the damage that can be caused. It is disaster for all. The win/lose dynamic comes with them; it is almost impossible to talk to one parent about what could work for their child without them blaming the other for something, often unrelated. It effectively prevents progress, so everyone is stuck. Obviously there is sometimes actual abuse and that should never been minimised but more damage is caused by the conflict itself rather than the issues that people are in conflict about. All I see is v damaged children in the midst.

Parents with very different values/approaches to parenting argue about those post separation, but they were never going to be able to parent together. The most depressing thing is then to reach threshold for care proceedings.

I don’t disagree with any of your comment Sarah but I saw this in action way before pornification was so ubiquitous.

I am coming more round to way of thinking that what is needed is a dual approach. court hearings AND mediation. Both are pretty useless on their own – the court is too blunt an instrument and mediation is too toothless (and I think gives too many opportunities for the abusive to thrive).

I would suggest we start with better relationship/sex/contraception education. Try and stop some toxic relationships from even starting up, let alone produce children. Accepting that we won’t cure the problem entirely that way, have a proper look at what kind of dispute resolution would actually work.

It’s hilarious that Jeff persistently writes that I think the family courts are so great. Of course I don’t. I have consistently said that they are not the right arena for these kinds of disputes. The very physical nature of most of our courts is working against us – there is no where to go and sit and be private, often you have to attempt to conduct negotiations in sight and sound of opposing party… just adds to the stress.

Helen Why would parents going through private family proceedings trigger public law proceedings? Considerable numbers of parents can’t work together outside of court but that doesn’t mean the threshold is reached.
I actually believe that on the whole woman are at a disadvantage in care proceedings and there can be bias against men in private proceedings.

Sarah’s probably better on this than I am Sam; most of my cases aren’t private to public law. I’m more likely to be supporting private law orders in public law cases. Private law cases can meet thresholds in various ways, there might be some of the same issues that cause concern for children in public law proceedings; DV and/or substance misuse for example.

Most of the cases I’ve experienced have been emotional damage to children, severe enough to be considered as significant harm. Children being used as pawns or described as being caught up in a tug of love is a quite low-key way of describing the war zone some of them inhabit. I find their parents’ ability to protect is hampered by their focus upon & engagement in conflict. The conflict itself can be an issue; where it has become parents’ modus operandi, they can be unable to see that the issues they may dispute are less significant to than the constant state of warfare the dispute creates.

The manifestation of conflict can be pernicious, most commonly I’ve known children being coached to make false allegations against parents, and these can expose to age inappropriate information and are aimed at, indeed causing sometimes, parental alienation. When they are happening on both ‘sides’ which they often are, the desperation of a child being over compliant and trying to please both parents is heart-breaking to witness. The children I’ve worked with have developed maladaptive coping mechanisms which have led to MH issues, self harm, eating disorders, and have been being exploited or are v vulnerable to exploitation. Those features of a case are as damaging to children, their attachments, well being and future outcomes as any other case.

When cases reach CP there are often psychological issues that are barriers to effecting change and some relationships that if they resumed you would be very worried about the children. There are though also parents who do have the capacity to effect change in a way that a lot of families I work with don’t have without help/support and they are v frustrating. There is also often an issue in the wider family if conflict is perpetuated through extended family members. I then have to really limit who is included in family group meetings (they aren’t conferences per se because they need more managing/mediation).

reply to Sam about why private law proceedings turn into care proceedings – i think Helen has answered fully.

It is not usual but it does happen. The emotional abuse the parents inflict on their children can get high enough to force care proceedings. It is unusual because LA are highly, highly reluctant to go near them. I have only dealt with a handful of such cases and it was almost always me applying to force their involvement by a section 37 report.

90% of courts I go into seem to have been designed and built by someone who really, really, really hated people. Swindon for example has tiny little cell like rooms you can just about squeeze 3 people in. Bristol CJC is not bad but still not enough rooms and impossible to get a phone signal! Plus only nearby parking is for maximum of 2 hours so people in a constant state of stress about getting a ticket. Things like that really don’t help. Really ‘intrigued’ to see how the ‘pop up’ courts are going to work. When I was in Australia back in 2008 they had what were called Family Dispute Resolution Centres – I dimly remember the aim of that was to have a kind of ‘one stop shop’ with mediation and Cafcass type officers. I don’t know what happened to that. I assume it died a death as I haven’t heard of it since.

I have witnessed the most appalling abuses imiginable, i was asked to help someone and what I uncovered was nothing less than web of lies, deceit and conspiracy, to which the judge paid no notice whatsoever…..

{EDIT I had to block James on Twitter as he wouldn’t stop going on about Nazis. I don’t think his comment is going to remotely promote constructive debate, so I delete it }

It may seem odd with the present state of morals but marriage was once deemed usual ,desirable and a moral essential before a couple created another human life which was then regarded as a MASSIVE responsibility. Having children then falling out with the other parent was something responsible human beings avoided .

Men, in particular, had to have respect for the rights and vulnerability of a woman in times gone by and this appears to have diminished since pre-marital sex became more acceptable in recent times. Whatever changes have evolved in the so-called sanctity of marriage etc. i would say that it is still preferable that a man should make some sort of commitment to a woman before ‘passing on his d.n.a.’ as Sarah so circumspectively terms having a child.
I would say that if a man will not commit to marriage and thus will be able to go around having children with another woman ( sometimes a collection of women) , then he should not expect to have equal PR with the unmarried mothers of his children. Surely,the mothers deserve better than that. Perhaps i am old-fashioned. They should certainly not have the prerogative to take a child from natural mother to be be parented by a step-mum . Step parents cannot have the same love for a child,indeed they often resent step-children. Obviously the same applies vice-versa which is why the facts about a break-up is important for a judge to consider.
Old-fashioned maybe,but not all that odd.

‘PR’ is a profoundly irritating and useless concept. It gets in the way so much. As you say – if your DNA made that child, you are a father. Whether or not you can insist on a role in that child’s life depends on lots of factors. But lets not get sidetracked arguing about PR.

I wonder if you realise that prior to the sexual freedom revolution of the sixties, a man had two choices if he fathered a child. Either marry the Mum and make the child legitimate or forgo forever any rights over the child. I believe that was the position.
The law can indeed be used as a tool to modify people’s behaviour in this way. It used to work quite well, i believe.

The sexual freedom of the 60’s was about the introduction of more reliable contraception and the legalisation of abortion. Contraception gave people more choices about whether sex was for procreation or enjoyment and abortion the right to choose whether to remain pregnant. It doesn’t mean that people weren’t having just as much sex before then or fewer babies. Nobody’s behaviour was modified, it just lessened the shame and blame around women. I don’t want to live in a society where women go to a home for fallen women or marry someone they don’t want to because they are pregnant. I think I have more to say about the morals of those who ostracised women from society or the tragedy of women who lost their children to adoption because of the stigma of being an unmarried mother. Old fashioned values maybe but nothing good in there for me.

I think the concept of mothers and fathers being responsible for parenting the children they create together, whether they are together or apart, is the key regardless of marriage or PR.

The issues that adults want resolved in court are just that, adult issues. Parents put a face on lots of stuff so they don’t expose their children to it, post separation disputes should be one of them.

I agree with a combination of mediation and court, not sure how that can work.

I have seen it work in practice – a Judge reads parents riot act and says – either you sort it out or I am going to make an order you really don’t like. How about you go and mediate and come back. I am not sure if its worked as I don’t get to track these cases. But mediation on its own is just too flabby to deal with the problems. There has to be some muscle. But muscle alone is hopeless as you have to encourage a change in mindset as well.

But there are a small minority of cases where frankly one or both of the parents are deeply psychologically flawed and there is no mechanism on earth that will bring a peaceful resolution.

Hmmmm. You look back on the past with very rosy tinted spectacles. Thousands of babies were given up for adoption, unmarried mothers were stigmatised and exploited. Women died in back street abortions. Sex was masked with shame. We are still dealing with the legacy of that today. It didn’t work well at all, what nonsense.

We now have a position where it is felt necessary to take thousands of children for adoption later on when it causes much more harm to them and where mothers and the children are stigmatized and exploited by the system. Women suffer from greatly increased domestic violence. Has the liberalization worked well? It is debatable, we are still finding out and dealing with it .

The last thing we should do is turn this thread into a time-wasting wrangle about the rights and wrongs of the sixties revolution in behaviours. We have to acknowledge that Sarah is right. – being a parent is a responsibility. Bringing another life into this world is a very serious thing and one that should not be considered lightly or frivolously. Because when it goes wrong, the shock and emotional fall out is considerable for everyone involved.
The point I made as briefly as I possibly could was that the law can indeed be used as a tool to modify people’s behaviour and make things better, in my opinion.

I think I probably agree with you that the law can be used as a tool to modify people’s behaviour – but I didn’t agree with the example you used. Telling men they just had two options if they got a woman pregnant – marry her or abandon her – wasn’t exactly a very healthy behaviour modification.

But you know what I think might work? Rigorous enforcement of child maintenance payments. You chose to bring a life into this world, you damn well contribute financially.

I feel it was a helpful behaviour modification . If he wanted to legitimise his relationship with a child, he had to take vows and commit himself to Mum and the child alone. He could not just abandon the mother at any time and expect to be able to take his child with him.The mothers were granted full PR over a child by convention if the father would not commit.
I think it would cut down on these damaging private law disputes if it was made clear that by law, Mum has more parental rights over a child (outside marriage at least) than Dad has. That might make him think twice about deserting Mum.

I agree about maintenance payments. The law should enforce the natural father’s responsibility to pay.
However, even when he pays , the law should make it clear that unmarried fathers and fathers who deliberately seperate themselves from their wives do not share equal parental rights to care for children involved.
Equal parental responsibility ,yes but equal parental rights to a child,no.
This is just one father’s view. Although ,to use legal newspeak, he passed on his dna to the child , i think the law should state in no uncertain terms that Mum’s rights incurred by actually bearing and giving birth should predominate at least until the child reaches thirteen years of age. It is INHUMANE ( and dishonourable) that a father should remove a child from the arms of the mother.

I also think that the mother should decide contact issues although ,i hope she would act humanely and allow the father reasonable contact. If not, the father will just have to take it or get a mediator.

Helen, it might help if someone knows what the legal position of a sperm donor is. A sperm donor has no love or commitment towards a woman or any resultant child therefore i don’t think he will be able to claim rights or be given parental responsibility for it. It needs a lawyer to make a rule about it.
I do not have ‘gender views’ whatever they maybe, i just recognise the fact of life that Mum has a natural bond with the child which far exceeds any other . She gives birth. It is cruelty to remove a child from the mother.

Of course it is not the same,i entirely agree with you. I am saying that the legal position of a sperm donor might be of interest when discussing and making decisions about the legal position of an uncommitted father who has done little more than ‘pass on his dna’.
Casual relationships will come to an end and when they do , i suggest that younger children should be with their mother . Not only that,mothers have a human right not to have their bond to their child interfered with by Dad or anyone else. The Law should adapt itself to the state of affairs we face and make a pronouncement about it.
Then parents will not take their rows and disagreements to Court .It’s all about conventions and attitudes.
Are you saying that a Dad is the equal of a Mum, that a child ingests no more from the body and love of Mum as from the effort of a Dad who will not even commit to the family until the child reaches 16?

I am giving one father’s view . If any other fathers read it and disagree ,i welcome your comments too. Perhaps you can change my outlook.

I think if people have sex with each other, they can use contraception, if they don’t or it fails the baby is a joint responsibility. That is a completely different transaction n to being a sperm donor.
I absolutely don’t agree either that children need their mum’s more than dad’s and whilst mums are usually the primary care the notion that more naturally a parent is the very concept that creates the hothouse for PND.
Severing relationships with dads is just as bad as with mum and human rights are not gender specific.
If a dad doesn’t commit that is sad for everyone, I don’t know why he then would be interested in a 16 year old.

I meant the father won’t even wait until the child is sixteen before deserting Mum. Most reasonable people wait until their children get to that age before divorcing because they are less likely to suffer serious emotional disturbance from their parents break-up.

Well I disagree with that too in a couple of ways. Adolescence is a fragile time for many and if teenagers find out not only are their parents separating but their relationship was such that they should have done so sooner, children blame themselves and feel like they were lied to. I also think people should not put off separating because they have children, obviously sometimes people can work it out anyway, but the relationship where people are only together because of the children are not the happiest for anyone to inhabit, least of all the children. It is responsible co parenting that matters.

I agree. I can’t see how it helps children to grow up in a household where their parents clearly show their dislike and contempt for one another OR are simply cold and indifferent to one another. Better surely for those adults to separate and try to remain good co-parents under different roofs.

Obviously its not always that easy for everyone and I do wonder how many couples are together now just because they can’t afford to split up. So it goes back to what I said earlier – at least try to make sure that the person you have a baby with is with sticking around for!

The convention previously whereby men and women got to know each other , then got engaged for a while ,saved up etc. and showed restraint ( as a general rule) has gone forever. Moral standards of behaviour have fallen .
Maybe the tax ,benefit,employment or housing laws can be altered to give incentives for folk to wait before having children until they are 21 or over . I don’t think they will ever be able to enforce contraception,it would not be humane.

Meanwhile,this thread is about men .v. women .
Perhaps i am old-fashioned. If the father is a house-husband and Mum goes out to work and they break-up ,who keeps the child?

I don’t know whether any research has been done into it, but apparently the biggest cause of problems regarding these disputes comes when solicitors are brought in and start to ‘advise’ there clients on tactics and strategies. Matters escalate and escalate and all reasonableness seems to vanish when solicitors get involved.
Any comments about it.

Moral standards have changed and I am very pleased about that, a whole load of stigma has gone with them so people don’t have to live with shame.

All decisions about where a child lives post separation should be in the child’s interest, so if their primary carer is a man, why not as a main carer?

People are waiting later and later to have children, the issues is they wait to long generally.

People who take family disputes to court who could mediate are likely to instruct their solicitors adversarially generally. They take the fight into the court room rather than the fight being because they are there imho.

One of the reasons for the poor quality of debate (and I agree that the quality is poor) is the lack of good quality research and evidence which can be used to support a position. Jeff is (presumably) forced to rely on some old articles and comments because there is little more recent which backs up his argument (which is not at all the same thing as saying his argument is wrong).
Your own use of the research by Maebh Harding and Annika Newman is a case in point; you use it to support the view that the family courts do not discriminate against fathers. As it happens, I broadly agree, but in a series of interesting email exchanges with Dr Harding, she warned me (as applies to all academic research) against using the research to prove more than was intended. The study was simply designed to reveal the range of child arrangements which are likely to be drawn up into orders: the range which will receive court sanction. The sample was small and not necessarily representative, and to draw wider conclusions is risky.
Following publication of the report, I happened to take issue with an article written by another former member of Fathers4Justice (Jeff and I are both ex members), Glen Poole, who was arguing that the courts are biased against fathers. I didn’t feel that he substantiated his argument and, more widely, I don’t believe the fathers’ movement has ever argued this case effectively.
Equally, the other side of the debate has never (to my mind) effectively refuted the claim; the 2008 Joan Hunt/Alison Macleod report which was designed to do that failed, and simply exposed what low levels of contact were being awarded (only 12% of orders were for satisfactory levels) and confirmed what fathers said, which was that successive applications (necessitated by poor compliance) resulted in orders for less and less contact.
Another problem is that the representatives of each side of the argument come from very different perspectives to which they are emotionally attached and find it exceptionally difficult to have any sympathy for the opposing point of view. The “all lawyers are evil child abusers in it only for the money” approach is manifestly absurd, but it might be wise to seek to understand why it is so prevalent. Equally, it isn’t hard to comprehend why those who have dedicated their careers and lives to the industry are apt to over-react when their motives are questioned.
There are some very good books by Simone Katzenberg (a family lawyer) in which she clearly understands the emotions experienced by separating couples. She describes 7 stages through which people pass, from shock to acceptance, which are very similar to the 5 stages on the Kübler Ross bereavement curve. The point, which litigants and lawyers (and McKenzies) alike should be aware of, is that there are points in their lives at which separating adults are completely incapable of cooperation, reconciliation, or rational thought. Few lawyers who haven’t been there themselves have any empathy regarding this. While I accept that the family courts do not create these emotions, where they have little understanding they are inclined to exacerbate them. I absolutely agree with you, Sarah, that in court is the last place such parents should be.
My own view is that we need to be looking at a system of “family hubs”, as described by the Centre for Social Justice, Mishcon de Reya (and even F4J) and others, as a “one stop shop” for resolving family issues and disputes, and that the courts should only be used in those cases where children are most at risk. The Harding/Newman study, however, seemed to imply that those cases for which mediation was suitable were being mediated and that all other cases needed to go through the court process, so perhaps I’m wrong.
Finally, while we are all clear that the quality of debate is poor, I wonder what a good debate would actually look like?

good debate, in my view, is what you have just set out in your comment. Reasonable assertions, backed up by evidence. Pointing out strengths and weaknesses. Making clear suggestions for reform. Being open to understand why people react the way they do.

I completely endorse this point and it is sadly very often ridden rough shod over by judges, who I accept are often simply utterly exasperated:The point, which litigants and lawyers (and McKenzies) alike should be aware of, is that there are points in their lives at which separating adults are completely incapable of cooperation, reconciliation, or rational thought. Few lawyers who haven’t been there themselves have any empathy regarding this.

I have been there myself and it took at least five years until I was able to view my situation dispassionately and not be utterly overwhelmed by fear, grief and loss. Luckily I avoided court proceedings but I am quite sure that I would have reacted very badly.

I haven’t studied the Harding/Newman research in any great detail – and isn’t this always the problem? there is loads of good stuff out there which most of us don’t have the time/expertise to read and unpick.

We desperately, urgently need better ways to disseminate important information so that Jeff doesn’t have to rely on 12 year old articles to make his point.

Yes, it certainly takes time to read through this stuff; press reports and sometimes even executive summaries can be misleading. The result is that we tend to seek out the reports which confirm our own starting positions (well, I do, anyway), when we might learn more by reading the views most at odds with our own.

this is probably the most serious of all the problems we need to overcome – actually getting information out there that people can digest and trying to combat the inevitable problems of the ‘echo chamber’ where familiar prejudices just get reinforced.

The problem is that being challenged is so hard for most of us. It’s still quite hard for me and I have been trying for the past two years to be much more open and take on board a much wider range of experiences.

We have to recognise that comments on the CPR are just that, comments made as part of a discussion. It isn’t a formal debate.
In a discussion, we can give opinions whether based on research or not and ask aswell as reply to questions.One can be honest and outspoken as one wishes.
In a debate, one can be dishonest.A debater chooses or is assigned a side of the argument ;like a lawyer in court ,he does not have to believe all he says, i don’t think.
I think the recent super-long discussion was immensely useful. Helen made some truly,honest and remarkable revelations particularly about databases and evidence bases which explained a lot to us.
Discussion may sometimes go round in circles but that does not mean it is unproductive.
In fact,i would say the reason it went on so long compared to usual was because of a SW’s full involvement for once.

Yes, I don’t mean to sound dismissive or ungrateful for people’s comments. It was a very valuable discussion – it just went a bit sour for me towards the end which I accept was mostly by own fault because I allowed myself to get frustrated.

I should have just stepped away! but its always easier to give good advice to others than follow it yourself I find.

I wonder if readers can accept that, by the same token, honest discussion involving all protagonists is more likely to provide us with honest and far-reaching solutions than formal debate between mainly professional debaters?
In a formal debate, those taking part will tend to select only the statistics and research which fits their own angle rather than honestly consider change and reform.
Maieutic jaw-jaw is a more democratic method of deciding issues , more persuasive and conducive to agreement than the war-war of continuous professional debate. Especially when professionals feel themselves qualified to turn round and declare that those who disagree with them are’ deeply psychologically flawed’.

I certainly accept this. It is the model for both CPConf2015 and CPConf2016. All delegates will be invited to discuss and debate at the final session of the day.
Already it is clear that this approach is slowly but surely bringing very useful result and I hope CPConf2017 will be able to showcase some of the changes we hope now to make.

I am glad to hear it,Sarah.
May i add that the discussions which protagonists have together comprises, in a way, ongoing up-to-date research . It is possible for all to make decisions on-the -spot and to act pro-actively towards the same goal.
E.G. wei can cite productive discussion on this forum at any time to argue points and can honestly say our views are based on ‘research’.
I hopethis makes sense.

Nick Langfords remark that we learn most by reading the opinions most at odds with our own hits the nail on the head.
Then we have to be honest, amend our opinions where necessary and compromise. Warring parents in private law cases will usually not be willing to compromise, they are dead set against each other.
Unfortunately ,many SW’s will not compromise in Public Law cases which should not be adversarial really.
Lawyers should realise it is their job to enforce compromise and be absolutely impartial in court.

Just to add my two cents, it’s acknowledged there are problems caused by courts not following practice directions and guidance. I can think of a number of CoA judgments where Lords Justice express exasperation at ‘yet another’ case coming before them where guidance isn’t followed.

Experienced legal practitioners may not see these matters as being a particular issue because they have the experience to nudge and inform proceedings and challenge poor case management decisions. Your average litigant in person does not have the knowledge to do so during proceedings or adequately prepare and argue grounds for appeal.

I wrote on that case because the problems in case management are quite common in my experience. Often I’ll be contacted by parents whose cases have gotten nowhere and that experience and their experience formed the basis of the proposals I wrote last year which were presented to Sir James in September 2015.

While levying some criticism at ‘the system’ and Munby’s not accepting responsibility for systemic failures impacting on H-B, it would be wrong to suggest the problems aren’t recognised and there aren’t genuine attempts at improvement. The announcement that there’ll be a working group between legal professionals and psychiatrists in the area of child alienation is very welcome. I made this suggestion in my 2015 paper. There remains the problem that even with improved practice directions, what happens when the court doesn’t follow guidance?

While not agreeing with Munby’s opinion in H-B, he’s a man I respect, who I think isn’t overly protective of ‘the system’ and is open to constructive criticism and he has a genuine desire to improve outcomes and process. That said, he faces a monumental task hampered by austerity cuts, court closures and others in the profession being less open to criticism and a lack of systems for quality control. I think it’s generally acknowledged the system is creaking, and when systems come under pressure more mistakes are made.

There is less gender bias in the system than there was (there remains some, as family law outcomes are dependent on the opinions of human beings who suffer the full gambit of human prejudices). Improvements in this area have to some extent been offset by increasing case management failures as the system creaks. While improved process brings the opportunity for improved outcomes, we’ll only see improvements if the guidance is followed. That, to my mind, is probably the largest dilemma and I think Munby’s greatest challenge.

Knowing Jeff, I can attest he’s a sensible and reasoned chap and I suspect he faces the same limitations all of us ‘commentators’ do, about not being able to discuss cases individual cases given confidentiality restrictions, ethics etc. I haven’t discussed his or your article with him, but I suspect he has to rely on historic published judgments and news articles which support what he sees today. I can reassure you that I have never known him use the word feminazi, and I’ve known him for ten years.

Well, I will have to take your word about Jeff being sensible and reasonable.
But what I see is him and Nick Langford discussing me on Twitter saying I show ‘contempt’ for the people I represent and who pay me (they don’t tend to, that would be the Government) and that I have zero understanding of complex human emotions.
Neither of them have the courage to bring those comments to my attention, I have to trip over them on line.
That rather sours the debate for me, and I am afraid makes me seriously doubt the bona fides of both those commentators.

But thank you for your comment – I agree about poor case management being the problem. But with lack of judicial continuity and extreme pressures on existing judges, it isn’t sadly surprising.

I have also written on HB and commented on the quite ridiculous expectations from The President that all parents have to do is exert a little pressure and voila! the problem is solved. That is obvious nonsense and that does display lack of understanding of complex emotions.